20 October 2014

Should I Appeal My Negative Judgment in Family Court?

In Canada, we don't elect our family court (or other) judges, however who you draw as the single judge
hearing your family court case can make a lot of difference to the outcome.
Source: Campaign Website of Denise Brown

You often won't have a choice about going to Family Court at the trial level. Either you're the Applicant, petitioning the court for something (divorce, spousal support, child support, child custody), or you're the Respondent replying to an application for one of those things by your ex-partner. Sometimes you'll be happy with the outcome of your family law case at the trial level, but unfortunately you'll often be dissatisfied, either because you didn't get everything you asked for, or because the other side got some or all of what it asked for.

Compared to a trial where you had to show up, you'll always have a choice over whether to appeal a negative judgment to a higher court (unless you're forced to respond to an appeal by the other party to a case). The questions you should be asking yourself in considering whether to appeal are:

1. how great of an impact will this negative judgment have on me and my family?

2. how long lasting will be that negative impact?

3. am I better off to just wait for a change of circumstances (in my own situation, or the other side's situation), and then reapply to the trial court to vary the negative judgement?

4. what are my prospects of success in an appeal?

5. which court do I appeal to, and what is the procedure?

6. do I need to hire a lawyer to do the appeal for me?

Answers to all of these questions are somewhat intertwined. In terms of impact, a slightly too high (in your opinion) spousal support award against you would arguably have a much lesser impact than losing custody of your children to the other party. The lasting effect of the impact relates to whether this is a final or interlocutory (temporary) family court order - though even temporary orders can become the status quo that is later difficult to change. If you think circumstances will improve for you in the future (like you might be in a better psychological and financial position to care for your children), then you might want to just wait out a negative order and reapply to the court in six to twelve months citing change in circumstances.

As for prospects of success, while really only a lawyer can give you something of an accurate assessment of your case on appeal, you could consider for yourself where the "justice" of the matter appears to lie, and try your best to imagine how unjust to the outside objective observer the negative judgment in question would appear. I know it's tough to be objective about such things, so perhaps ask others what they think. No appellate court is going to care about you having to pay $550 per month in child support, when really you think the figure should have been $500. However, lots of courts might have sympathy for you losing complete custody of your children, when you had presented a viable parenting plan, and there are serious doubts about your ex-partner's ability to parent.

One reason you might stand a better chance on appeal than at trial is that you will often get three judges hearing your appeal, rather than the one judge at trial, thus maximizing the prospects of obtaining a reasonable, rational decision from at least two of them (majority rules). However, you should realize that appellate courts generally defer to trial court findings of fact, because it is only the trial courts who hear the live evidence.

In Ontario, interlocutory family appeals coming from the Superior Court of Justice go to the Divisional Court, NOT the Court of Appeal, and need prior leave to appeal from the Superior Court of Justice. Final family law appeals coming from the Superior Court of Justice go to the Court of Appeal, and might need leave depending on what is being appealed. Thus the which court do I appeal to question is very important, as you may have a very short time limitation in which to appeal, and don't want to be stuck in the wrong court after your time to appeal to the right court has expired.

As for whether you need a lawyer, the answer is probably. I'm very sensitive to the fact that unfortunately employing legal counsel throughout family law court proceedings can become prohibitively expense, because of all the time (and thus lawyer billable hours) that family trial litigation can consume. By comparison, appeals are usually quicker and possibly less costly to pursue - though might only result in the matter being sent back to the trial judge for a new decision based on proper legal principles. Appeals also involve a much more paper-based and technical process (because appeals are more about the law and trials are more about the facts) than for trial family court, thus anyone trying to undertake a family appeal by her or himself needs to be familiar with the Rules of Court, how to conduct legal research, how to prepare a factum of argument and book of authorities, and then how to orally argue the case before the court.

In theory, it's possible for a self-represented litigant to conduct a successful appeal, but you're going to have an uphill battle that from a legal argument perspective will be more challenging than the battle you fought before a trial family court.